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Feisbuk, Tuiter, y la


What Education Law

says about Social Media
The UFT Rule on Social Media

Regardless of how strict your privacy settings

... if its something you wouldnt show to your grandmother,

rabbi, or principal, dont post it.
First Amendment of the US Constitution

Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the government for a
redress of grievances.
Reminder: Procedural and Substantive Due Process

Procedural due process: state may not a person of life, liberty, or property,
without due process of law. Teacher must be given proper notice that he or she
is to be deprived of personal rights, they must be provided an opportunity to be
heard, and hearing must be conducted in a fair manner.

Substantive due process: state must have a valid objective when depriving
someone of life, liberty, or property and consequence must be reasonably

BOTH must be met in teacher dismissal proceedings.

(Fifth Amendment of the Constitution)

Pickering v Board of Ed, 391 US 563 (1968)

The US Supreme Court held that teachers are afforded First Amendment rights.
Teachers may only be disciplined if the speech disrupts superior-subordinate
relationships, result in breach of confidentiality, causes a disruption of a material
and substantial nature, affects the efficient operation of the school, or renders
the teacher unfit.
True threats
Watts v. United States, 394 U.S. 705 (1969)
After a jury trial in the United States District Court for the District of Columbia, the petitioner (Watts) was
convicted of violating a 1917 statute which prohibits any person from "knowingly and willfully . . .
[making] any threat to take the life of or to inflict bodily harm upon the President of the United States...."

During a public rally, Watts said, "They always holler at us to get an education. And now I have already
received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am
not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J."

The court found that what is a threat must be distinguished from what is constitutionally protected
speech. The Government must prove the true threat. They said they did not believe that the kind of
political hyperbole indulged in by petitioner fits within the term true threat.
Lets play, What would YOU do?

An elementary school teacher brought her dirty laundry to

school. After school she hung up her dirty laundry from
the clothesline that typically holds student work. She Remember:
posted the picture to Facebook. - No abridging of
freedom of speech
Melissa, a middle school math teacher in Ohio, posted a - Must follow due
picture to Facebook of 16 students with duct tape on their process
- Teacher speech is
mouths and a caption of "Finally found a way to keep protected unless
them quiet!!!", she claims that the students had put the causes serious
disruption or
tape on themselves as a joke. renders teacher
- Government must
prove true threat
Minneapolis Public Schools
Policy 4038: Social Media Use

A. The decision to make personal use of public online social media is left to the discretion of each employee, or other
district personnel.

B. While the District does not affirmatively monitor employee or independent contractor use of public online social media,
it may take appropriate responsive action when it becomes aware of, or reasonably suspects, conduct or communication
on a public online media site that adversely affects the workplace or violates applicable professional codes of ethics or
other laws.

C. Employees will be held responsible for disclosure, whether purposeful or inadvertent, of confidential or private
information, information or data that violates the privacy rights, or other rights, of a third party, or for the content of
anything communicated by the employee on any public online social media. An employee who fails to comply with this
policy and rules established by the Superintendent may be subject to disciplinary and other consequences, up to and
including termination of employment.
Brian White, Jr.
At St. Pauls John A. Johnson Elementary School, special projects coordinator Brian White Jr. was
placed on paid leave for posts he made on Facebook.

White, who is black, is part of a leadership program in the school that can lead to an administrative

For all of the black women that have bought into feminism. It was not created to help you nor does it
care about you right now, White posted. We must put our energies back into building the black family
structure! Stop being derailed.

White has made several other posts emphasizing the importance of a traditional black family structure
and criticizing the effeminization of black men.

(Star Tribune, March 26, 2016)

Brian White, Jr.

The investigation resulted in no disciplinary actions.

Mr. White has moved on to a position at a local charter school.

So far...

Most teacher social media cases result in

no disciplinary action

the district firing the teacher and the teacher moving on

the teacher suing the board/city, but then settling in order to minimize financial
burden on both sides...
Matter of Rubino v City of New York (2012)

In 1995 Christine Rubino began working for the NYC Department of Education (DOE). In February of
1997, she began working at Public School (P.S.) 203 in Brooklyn.

On June 22, 2010, a New York City public school student fatally drowned during a field trip to the beach.
On June 23, 2010, after the school day was over and Rubino was at home, she posted the following on
her Facebook page: "After today, I am thinking the beach sounds like a wonderful idea for my 5th
graders! I HATE THEIR GUTS! They are the devils (sic) spawn!" One of her Facebook friends then
posted, "oh you would let little Kwame float away!" to which petitioner responded, "Yes, I wld (sic) not
throw a life jacket in for a million!!"
Matter of Rubino v City of New York (2012)
After viewing Rubino's postings, one of her Facebook friends, a P.S. 203 colleague, contacted the
school's assistant principal and expressed concern about the postings. On June 24, 2010, the assistant
principal showed the postings to the principal, and upon her instruction, contacted the Special
Commissioner of Investigation for the New York City School District (SCI), which initiated an


Hearing officer recommended Rubinos termination emphasizing that Rubino had engaged in conduct
unbecoming my making offensive comments in a forum that is not truly private. They also found that
Rubino had knowingly tried to convince a friend to act like the source of the post.

The hearing officer declined to "render a conclusive decision on the [first amendment] rights of a person
making inappropriate comments on Facebook."
Matter of Rubino v City of New York (2012)


Does the termination infringe on Rubinos first amendment right to free speech?


The court must determine whether the termination was rendered in accord with
due process AND the merits the claim of a violation of first amendment rights.
Matter of Rubino v City of New York (2012)


As the hearing officer determined that the Facebook postings do not constitute protected speech insofar as she decided
that Rubino posted the comments as a teacher and that the comments did not pertain to a matter of public concern, state
judge does not address the merits of Rubino's first amendment claim.

The standard for reviewing a penalty in NY is whether the punishment imposed is "is so disproportionate to the offense, in
the light of all the circumstances, as to be shocking to one's sense of fairness." (Matter of Pell, 34 NY2d at 233)

Here, petitioner's 15-year employment history with the DOE was unblemished before she posted the offensive comments,
and she posted them outside the school building and after school hours. Moreover, there is no indication in the record,
nor any finding, that her postings affected her ability to teach.

There is also no evidence that her postings injured her students or that she intended any injury. Although the hearing
officer emphasized the public nature of her postings and her creation of an "electronic footprint," she made no finding as
to their effect on petitioner's past and future students.
Matter of Rubino v City of New York (2012)


The state judge did not condone Rubino's conduct and acknowledged that teachers should act as role
models for their students. While they did not address the first amendment right to free speech, they
stated that termination in these circumstances places far too great a strain on the right to express
oneself freely among friends, notwithstanding the repulsiveness of that expression.

Accordingly, it is hereby ORDERED, that the petition is granted to the extent that petitioner's
termination is vacated, and the matter is remanded to respondent New York City Department of
Education for the imposition of lesser penalty in accordance with this decision.
Student Free Speech Cases

Tinker vs Des Moines Independent CSD, 393 US 503 (1969) - teacher nor students shed their
constitutional rights to freedom of speech or expression at the schoolhouse gate. Schools may forbid
conduct that would materially and substantially interfere with the operation of a school.

Bethel School District v Fraser, 478 US 675 (1986) - speech may be limited if the expression is sexually

Morse v Frederick, 551 U.S. 393 (2007) - schools may suppress speech that promotes the illegal use of
drugs. The school has an importantindeed, perhaps compelling interest to deter drug use by
Sagehorn v Elk River School District

Reid Sagehorn, then 17 years old, responded to a rumor on website Rogers

confessions about whether he had made out with a 28-year old teacher.

He replied, Actually, yeah.

Youre the principal/superintendent. What do you do?


- May forbid speech that interferes with operation of school

- May forbid speech that is sexually indecent or that promotes the use of drugs
Sagehorn v Elk River School District

The district suspended him for five days, then extended it to 10 days, and then to nearly two months.

The local police chief said that Sagehorn could face felony charges for committing a crime.

The Hennepin County attorneys office declined to charge Sagehorn.

The district found no evidence of an inappropriate relationship between Sagehorn and the teacher.

Reid Sagehorn sued the Elk River School District, the police chief, and others. They settled the case.

The district will pay Sagehorn $325,000, the city will pay him $100,000, but the attorney for the school
district states that the settlement does not mean the district admits any wrongdoing and that it was
based on financial realities.
Sagehorn v Elk River School District

In determining if the student adequately pleaded a First Amendment violation,

the court states that to regulate speech off campus, officials must demonstrate
that the speech falls under the true threat exception or the substantial
disruption exception. The court stressed the latter exception poses an extremely
high bar, and is applied only in the most violent and threatening forms of
R.S. & S.S. v Minnewaska Area School District, et al.

In early 2011, R.S. posted a comment on her Facebook page about her dislike of a school staff member
while at home on her own computer. The school soon learned about the comment and R.S. was
punished with detention and was forced to write an apology to the staff member. She was disciplined
again when she cursed on her Facebook page, stating I want to know who the f%$# told on me. This
time she was given an in-school suspension and was prohibited from attending a school field trip.

In a second incident, R.S. was brought into a school administrator's office where she was coerced to
turn over login information to her Facebook and email accounts because of allegations that she had had
off-campus online conversations about sex with another student. Present at the search was a local
deputy along with two school officials. During this process, R.S. was called a liar and was told she would
be given detention if she did not give the adults access to her accounts. R.S.'s mother was not informed
about the search until after it happened. At no point did the deputy and school officials have a warrant to
search R.S.'s private online accounts.
R.S. & S.S. v Minnewaska Area School District, et al.

Did the sanctions violate the students First Amendment right to free speech?


In determining if the student has a claim to a violation the court said that Such statements are protected
under the First Amendment and not punishable by school authorities unless they are true threats or are
reasonably calculated to reach the school environment and are so egregious as to pose a serious safety
risk or other substantial disruption in that environment. R.S.'s Facebook wall postings were not true
threats or threats of any kind. While her statements may have been reasonably calculated to reach a
school audience, that possible fact is not sufficient to justify her punishment. The school defendants
must also show that the statements posed a substantial disruptive effect.
R.S. & S.S. v Minnewaska Area School District, et al.


The case went to the US District Court of Minnesota where it was settled. As part of the settlement the
School District agreed to change its policies to better protect students' privacy and train its staff on the
new policy to ensure it is correctly followed. The district makes no admission of liability in their
agreement and the plaintiff agree to dismiss their claims.